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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DERRICK YOUNG
Appellant No. 1468 WDA 2013
Appeal from the PCRA Order dated August 12, 2013
In the Court of Common Pleas of Fayette County
Criminal Division at No: CP-26-CR-0001352-2010
BEFORE: PANELLA, MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 9, 2014
This post-conviction collateral appeal returns to this Court after we
remanded for filing of an opinion under Pennsylvania Rule of Appellate
Procedure 1925(a). Pro se Appellant, Derrick Young, challenges the
dismissal of his first petition under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-46. After careful review, we affirm.
A discussion of the facts is unnecessary, but may be reviewed in our
decision on direct appeal, Commonwealth v. Young, 38 A.3d 917, No. 810
WDA 2011, at 1-3 (Pa. Super. filed Nov. 10, 2011) (unpublished
memorandum), appeal denied, 49 A.3d 443 (Pa. 2012). Briefly, a jury
convicted Appellant of rape, aggravated assault, and numerous other crimes
of physical and sexual violence for his nighttime attack on a woman in
Connellsville, Fayette County. The trial court adjudged Appellant a sexually
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violent predator, and sentenced him to an aggregate of 15 to 30 years in
prison. He appealed to this Court, raising only one evidentiary issue, which
we found waived. Thereafter, Appellant filed his first PCRA petition raising
16 separate claims. The PCRA court appointed counsel, who moved to
withdraw under Turner/Finley,1 contending the petition was meritless. The
PCRA court granted the motion to withdraw and dismissed the petition
without a hearing. This appeal followed.
This Court examines PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record[.]
Additionally, [w]e grant great deference to the factual findings of
the PCRA court and will not disturb those findings unless they
have no support in the record. In this respect, we will not
disturb a PCRA court’s ruling if it is supported by evidence of
record and is free of legal error. However, we afford no
deference to its legal conclusions. [W]here the petitioner raises
questions of law, our standard of review is de novo and our
scope of review is plenary.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)
(internal quotations and quotation marks omitted). Furthermore, “[t]his
Court may affirm a PCRA court’s decision on any grounds if the record
supports it.” Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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It is difficult to understand the issues and arguments raised in
Appellant’s pro se brief. Nevertheless, review is not impossible, and we will
address the issues to the best of our ability.2 Appellant argues that he has
a right to counsel in his PCRA petition under the Sixth and Fourteenth
Amendments to the United States Constitution, and that PCRA counsel
rendered ineffective assistance by withdrawing under Turner/Finley. These
arguments have no merit.
There is no federal right to counsel in state post-conviction
proceedings. See Commonwealth v. Holmes, 79 A.3d 562, 581 (Pa.
2013). Appellant appears to argue that he has a constitutional right to
counsel on a first PCRA petition, because it is the first time he could
challenge trial counsel’s effectiveness. Whether a state post-conviction
petitioner “has a right to effective counsel in collateral proceedings which
provide the first occasion to raise a claim of ineffective assistance at trial” is
an open question. Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). The
Martinez Court, however did not recognize a constitutional right to counsel
in state post-conviction proceedings. Id.; see also Holmes, 79 A.3d at
581-82 (noting that Martinez’s holding is limited to whether there may be a
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2
Appellant filed an unsolicited concise statement of errors complained of on
appeal. As we noted in our decision remanding for preparation of a Rule
1925(a) opinion, the law is unclear whether a gratuitous concise statement
binds an appellant to the issues raised in that concise statement. Due to
this uncertainty, we will address the merits of the issues raised in Appellant’s
brief.
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remedy in a federal habeas corpus proceeding for ineffective assistance of
post-conviction counsel). Appellant had a rules-based right to counsel on a
first PCRA petition. Henkel, 90 A.3d at 22 (quoting Pa.R.Crim.P. 904(C)).
His right to counsel, however, was vindicated when PCRA counsel was
permitted to withdraw under Turner/Finley. Here, counsel and the PCRA
court complied with Turner/Finley, and Appellant no longer has a right to
court-appointed counsel.
Appellant also appears to argue that PCRA counsel rendered ineffective
assistance by withdrawing under Turner/Finley. Appellant, however,
cannot raise PCRA counsel’s ineffectiveness for the first time on appeal.
Henkel, 90 A.3d at 20.
Regarding the claims raised in Appellant’s pro se PCRA petition, the
trial court found that Appellant could not meet the test for ineffective
assistance of counsel.3 Appellant’s PCRA counsel, after review, determined
that the PCRA petition was meritless and petitioned to withdraw. The PCRA
court independently reviewed the record and reached the same conclusion.
The claims lacked either arguable merit, or Appellant could not show
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3
“To plead and prove ineffective assistance of counsel a petitioner must
establish: (1) that the underlying issue has arguable merit; (2) counsel’s
actions lacked an objective reasonable basis; and (3) actual prejudice
resulted from counsel’s act or failure to act.” Henkel, 90 A.3d at 30
(internal quotation omitted). “Where the petitioner fails to meet any aspect
of this test, his claim fails.” Id. (internal citation omitted).
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prejudice. In addition, Appellant raised some claims for the first time on
collateral review. These claims include the improper removal of a black juror
by the judge and the failure of a hospital to present the victim’s medical
records. They are waived. See 42 Pa.C.S.A. §§ 9543(a)(3) (requiring PCRA
petitioner to plead and prove that claims are not waived), 9544(b) (“[A] an
issue is waived if the petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.”); see also Commonwealth v. Steele, 961
A.2d 786, 802 (Pa. 2008) (finding PCRA petitioner waived challenge to
admission of hair analysis evidence by failing to raise the issue on direct
appeal).
Finally, the PCRA court ruled that Appellant is not entitled to relief
because he failed to allege or prove a “strong prima facie showing that a
miscarriage of justice may have occurred.” PCRA Court Rule 1925(a)
Opinion, 8/7/14, at 4 (citing Commonwealth v. Fahy, 737 A.2d 214 (Pa.
1999), and Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988)). In so
ruling, the PCRA court applied the wrong legal standard. This is Appellant’s
first PCRA petition. The Lawson miscarriage of justice standard applies only
to second or subsequent PCRA petitions. See Fahy, 737 A.2d at 223 (“Th[e
Supreme C]ourt has determined that in reviewing claims for relief in a
second or subsequent collateral attack on a conviction and judgment of
sentence, the request will not be entertained unless a strong prima facie
showing is demonstrated that that a miscarriage of justice occurred.”)
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(emphasis added); Lawson, 549 A.2d at 112 (“We therefore conclude that
a second or any subsequent post-conviction request for relief will not be
entertained unless a strong prima facie showing is offered to demonstrate
that a miscarriage of justice may have occurred.”) (emphasis added).
Rather, a petitioner’s burden of proof in a first PCRA proceeding is by a
preponderance of the evidence. 42 Pa.C.S.A. § 9543(a); Commonwealth
v. Busanet, 54 A.3d 35, 45 (Pa. 2012). Nevertheless, the record supports
the dismissal of Appellant’s PCRA petition, and we may affirm on any
grounds supported by the record. Ford, 44 A.3d at 1194. Here, the record
supports the finding that Appellant’s ineffective assistance of counsel claims
lack arguable merit, or he cannot establish prejudice. Also, Appellant’s
claims of trial court error are waived.
Appellant has failed to establish reversible error committed by the
PCRA court. Accordingly, we affirm the order dismissing his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2014
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Com. v. Young, D.
Combined Opinion